LEGAL PRACTITIONER AS A DR

LEGAL PRACTITIONER AS A DR

A departmental inquiry is mostly carried out on the basis of the rules laid down by the management of organizations. The first and the foremost guideline to hold a departmental inquiry is to abide by the principles of 'natural justice'. It is mandatory for the IO to play fair. The IO should always keep in mind that the proceedings should be carried out properly without any arbitrariness. Fair opportunity should be given to both the parties involved in the departmental inquiry. Can an employee demand a representation by a legal practitioner as a matter of right in the departmental inquiry? On a number pf occasions courts persisted that representation is not a matter of right to the employee, however they opined that one must not forget that departmental inquiries which are undertaken are not inquiries in the court of law, and in such inquiries fairly simple questions of fact as to whether certain acts of misconduct were committed by an employee or not is to be considered.



The right to be represented through a legal practitioner can be restricted by statutes, rules, regulations or standing orders in this regard. A reasonable extent of help and guidance must be meted out to the employee when a situation like a departmental inquiry comes up. This is because the employee is (or may be) at a disadvantageous and unequal position in industrial relations. Most often we see entire trade union system is crippled through inter-union rivalries and most employees are not aware of the legal technicalities in such inquiry proceedings. Wherein an inquiry, the charged employee is pitted against a legally trained mind, the refusal to grant him permission to appear through a legal practitioner would amount to denial of a reasonable request and violation of essential principles of natural justice.



There are certain circumstances which may warrant representation by a legal practitioner and if the opportunity is not given to the employee, this would amount to unfair labour practices and violation of natural justice. The circumstances are as follows:
(i) Where the PO is a legally trained personnel
(ii) Where the service rules confer discretion in the IO or DA to permit the charged employee to be represented by a legal practitioner
(iii) Where the facts of the inquiry case are complicated and the gravity of charges are high and the employee is not educated or skilled enough to handle such situation then a legal practitioner may be allowed to defend him.

The right of representation of a charged employee by a legal practitioner is only a small step in ensuing justice and fairness in departmental inquires.

With best wishes,

Keshav Ram Singhal

For Training Handbook on Departmental Inquiry Awareness, please Click Here

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION - 15

Whether a Personnel Officer,having no law degree can be treated as legally trained person if he is appointed as Presenting Officer?

Legally trained person is a person who has a qualification in law, such as law degree or a professional qualification in law. An officer (including Personnel Officer) having no qualification in law is not a legally trained person.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION - 14

Who is competent to hold departmental inquiry?

The person to be appointed as IO must be independent and unbiased so that the employee proceeded against may have confidence in him. This is based on two time-hounoured principles of public policy, namely, (i) that no man should be a judge in his own case, and (ii) that justice should not be done but manifestly and undoubtedly seem to be done. In other words, if a person is acting judicially, he should be free from bias, financial or otherwise either in favour or against a party to a dispute. He should not bring himself to a position where bias can be reasonably inferred to exist.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION - 13

What do the 'principles of natural justice' imply in departmental inquiry?

The basic concept of natural justice so far as departmental inquiries are concerned is that no man should be condemned unheard. He should be informed of the allegations or the basis upon which action detrimental to him is proposed to be taken and he given an opportunity of making his representation or presenting his case in regard to those allegations and consideration of that representation or viewpoint before action detrimental to him is taken.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

Short Note - The Inquiry Report

Whether the Inquiry Officer should provide a copy of the inquiry report to the charged employee?

Before an employee is punished in a departmental inquiry, a copy of the inquiry report should be furnished to the charged employee. In many cases, it was held that not furnishing the report amounts denial of natural justice.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

Natural Justice in Departmental Inquiry

It is always emphasized upon the necessity of observance of the principles of natural justice in the conduct of departmental inquiry by the employer. The rules of natural justice oblige the employer's management to follow certain pre inquiry procedures like informing the employee of the charges levelled against him, providing him the list of witnesses and documents having nexus with the incident to be relied upon in the departmental inquiry so that the CE and his DR can cross check its authenticity and veracity and thereby the CE should be provided with an opportunity to cross examine the contents and discredit their testimonies if required, fair opportunity to cross-examine witnesses and examine witnesses, including himself, in support of his defense and unbiased and proper recording of the evidences adduced by the CE. As such the IO should follow principles of natural justice, so that justice is done with the inquiry proceedings.
With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION - 12

Should Inquiry Officer administer oath to witnesses?

Departmental inquiries need not be conducted in accordance with the technical requirement of criminal trials, but they must be fairly conducted and in holding them, considerations of fair play and natural justice must govern the conduct of the IO. In departmental inquiry the Inquiry Officer should not administer oath to witnesses. Please read General Tips - 15 of this blog.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority